The issue has a decidedly partisan tinge

Published Mar 2, 2018 at 8:45 PM

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In this file photo, U.S. President Donald Trump departs the White House Feb. 2, 2018, in Washington, DC.

The Trump administration is looking for ways to deal with its recurring frustration: individual federal judges who have put the brakes on one major administration policy after another.

The administration is telling the Supreme Court in a case about President Donald Trump's travel ban that judges are increasingly using what are called nationwide injunctions to stop "a federal policy everywhere." The Justice Department says the high court should "reject the deeply misguided practice," which has also been used against the administration's crackdown on "sanctuary cities," President Donald Trump's announced ban on transgender military service members and, most recently, the effort to end legal protections for young immigrants.

Attorney General Jeff Sessions has become the administration's leading critic of the injunctions. Sessions said Tuesday they have been used 20 times in Trump's first year in office, "as many as President Obama had in eight years." But Sessions didn't object to the practice in his prior life as a senator from Alabama. He had praised a single judge from Texas who put a nationwide block on an Obama immigration policy. The more common practice is for a judge to issue an order that gives only the people who sued what they want.

Legal scholars have attributed the rise of these broad judicial orders to a corresponding increase in executive action. In 2014, Obama acted to protect immigrant parents of U.S. children after Congress failed to pass an immigration overhaul. Similarly, Trump unilaterally sought to impose travel restrictions on immigrants from seven Muslim-majority countries a week after taking office.

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The issue has a decidedly partisan tinge. During the Obama years, Republican officials and conservative interests sought out seemingly friendly judges, often in Texas, to challenge administration actions. Since Trump has been president, Democrats and liberal interests have filed lawsuits in places where they think federal judges will be receptive, like California, Hawaii and Washington.

"It does run the risk of politicizing the judiciary," said Amanda Frost, a law professor at American University, who has nonetheless defended the practice. "In an executive branch that often engages in unilateral, sweeping actions that are often implemented without notice, it's vital to have a check on its authority."

The travel ban is one such example, Frost said. "It wouldn't have been helpful to do it one court at a time."

But Sessions has taken a dim view of the judges who ruled against the administration over the travel ban. Speaking of that matter, Sessions said this week that "one judge blocked the entire federal government from carrying out its lawful duty." Last year, he referred to a federal judge in Hawaii who prevented the enforcement of the travel restrictions as a "judge sitting on an island in the Pacific."

Trump himself reacted to an early court ruling against the travel policy by tweeting his criticism of the "so-called judge" who issued it.

Some legal scholars said the administration is on firm ground in complaining about judicial overreach. "The judge doesn't have authority to do that," said Samuel Bray, a UCLA law professor who is moving to the Notre Dame Law School. "Judges decide cases. The cases are brought by parties and the judges are supposed to give remedies to those parties."

The orders judges have been issuing that apply everywhere have the effect of short-circuiting the legal process, forcing the high court to step in sometimes before the issues are fleshed out.

The travel ban case is the first time the administration has raised the injunction issue at the Supreme Court, but it's no sure thing that the justices will address it when they rule. They would first have to find that Trump overstepped federal immigration law or violated the Constitution when he imposed the travel restrictions. Only then would the appropriate remedy be at issue.

House Judiciary Committee Chairman Bob Goodlatte, R-Va., said at a hearing in November that he raised the issue with Chief Justice John Roberts and other judges. "There may be some hope they'll do something," Goodlatte said.

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He and other Republican lawmakers have complained about the use of the injunctions, but so far have not proposed legislation to curb them.

Rep. Jerrold Nadler, D-N.Y., cautioned his colleagues about acting rashly. "When power changes hands and the roles are reversed, those who once decried the use of nationwide injunctions will suddenly see the virtues of such a remedy," Nadler said.